Supreme Court Strikes Down Ban On Health Data Mining
Posted in Main Blog (All Posts) on June 25th, 2011 4:36 am by HL
Supreme Court Strikes Down Ban On Health Data Mining
Pharmaceutical companies target doctors for sales pitches through a process known as “detailing.” Data miners comb through prescription records to find out which doctors are treating which conditions with which drugs, and sell this data to drug companies so that they can pitch doctors on drugs they are likely to actually prescribe. If your doctor […]
Pharmaceutical companies target doctors for sales pitches through a process known as “detailing.” Data miners comb through prescription records to find out which doctors are treating which conditions with which drugs, and sell this data to drug companies so that they can pitch doctors on drugs they are likely to actually prescribe. If your doctor is treating a lot of people who take a certain unusual heart medication, detailing allows the pharmaceutical industry to learn that fact and try to convince the doctor to prescribe a different but similar drug.
A major problem with this practice is that it drives up the cost of care. Drug companies routinely discover that a doctor frequently prescribes an older or generic drug that is cheaper for patients, and then target that doctor to convince them to prescribe a newer, much more expensive drug. For this reason, Vermont passed a law banning detailing. Under Vermont’s law, prescription records can be used for any number of purposes, but they cannot be used by detailers to help drug companies target their sales pitches.
In a 6-3 decision by Justice Kennedy (Justice Sotomayor joined the five conservatives), the Supreme Court just struck this law down. According to the majority, the law violates the First Amendment because it allows prescription data to be used for many purposes, but not for data mining that benefits drug companies:
Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell prescriber-identifying information for certain purposes, including “health care research.” And the measure permits insurers, researchers, journalists, the State itself, and others to use the information.
In the Supreme Court’s words, the law “imposes a burden based on the content of speech” — information gleaned from data can be used to improve the quality of drugs but not to sell them — and thus the law violates the First Amendment.
One silver lining to this decision is the fact that the Court leaves open the possibility that a law that does not target detailing specifically could survive scrutiny. “If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” In the mean time, however, yesterday’s decision is a big win for the drug companies, and an equally big loss for privacy and medical cost control.
?Red Mars? Book Club: Evolution and Engineering
There will be spoilers through the first five sections of Red Mars in this post and in comments, so venture there at your peril if you’re concerned about that. If you want to spoil beyond those sections in comments, go ahead, but label spoilers as such. The first part of this book club appears here, […]
There will be spoilers through the first five sections of Red Mars in this post and in comments, so venture there at your peril if you’re concerned about that. If you want to spoil beyond those sections in comments, go ahead, but label spoilers as such. The first part of this book club appears here, the second here. For next week, let’s read “Guns Under the Table.”
For all that I don’t particularly enjoy spending time in Michel’s and John’s heads, these are two sections of the book that I think do a lovely job of laying out the central debates of the novel: how much can we change Mars? How much can we change ourselves? And once we’ve established these capacities, or maybe even beforehand, how much should we alter the planet or ourselves and our societies? What’s valuable? What should we let go? And what sort of unintended consequences will result when we succeed at engineering one factor in a way that radically changes all of our calculations.
Not only does it pose these questions quite well, but in laying them out, upsets our understandings of who’s on what side, who is a radical, and who is a conservative. Is Ann a conservative because she’s the purest Red out there? Or is she a revolutionary for being willing to accomodate her whole life to the preservation of a harsh, originalist Mars? Is Hiroko a revolutionary for running off to create her own society? Or a conservative for essentially abandoning engagement with the wider Mars? Is Nadia the architect of a new society, or a homesick Siberian recreating the trees of her memories? Once the power to do actual alchemical work, or to radically reengineer human DNA becomes routine, is doing that work esoteric, and mysterious, and powerful? Or does radical change itself become routine? To deal with everything posed in these sections, I’m going to divide the discussion into three sections:
I.
One of the things I’ve always found compelling about the Mars trilogy is Kim Stanley Robinson’s argument that to a certain extent, all science is applied, that science untouched (if not tainted) by agenda and influence and the purity of desire, is something of a myth. John reflects on the peculiarities of desire as influence when he visits Ann and Simon and finds Ann tremendously bitter at her loss to the terraformers: “Would she want to find evidence of an oceanic past? It was a model that tended to lend moral support to the terraforming project, implying as it did that they were only restoring an earlier state of things. So probably she would not want to find any such evidence. Would that disinclination bias her work? Well, sure. If not consciously, then deeper. Consciousness was just a thin lithosphere over a big hot core.”
And Arkady is right, of course, that scientists who take corporate funding and convince themselves that the bill will never come due are also deluding themselves:
The people who pay for the scientist islands will eventually want a return on their investment. And now we are entering that time. A return is being demanded for our island. We were not doing pure research, you see, but applied research. And with the discovery of strategic metals the application has become clear. And so it all comes back, and we have a return of ownership, and prices, and wages. The whole profit system. The little scientific station is being turned into a mine, with the usual mining attitude toward the land over the treasure. And the scientists are being asked, What you do, how much is it worth?
And when a whole planet is your lab, it’s much harder to preserve the purity of your experimental conditions. As Ann tells John, “you and Arkady are the biggest advocates of some kind of new Martian society, you two plus Hiroko, maybe. But the way Russell and Frank and Phyllis are bringing up Terran capital, the whole thing’s going to be out of your hands. It’ll be business as usual, and all your ideas will disappear.” But even in some of its skepticism about the conditions in which science can be done, this section is tremendously optimistic about about what science can accomplish, both in the lab and as a model for process in politics. But there’s a real sense of limitation about the questions science can answer. It’s not just that politics has overwhelmed scientific imperatives, making it impossible for Ann to keep the landscape pristine until she can get the kind of certainty she want about Mars’ nature and history. It’s that the unintended consequences of science spool out far beyond their origins.
II.
Of course that biggest achievement, that biggest unintended consequence, is the longevity treatment. To my mind, it’s fairly odd that there’s absolutely no discussion about the wisdom either of going ahead and administering the longevity treatment, or of anybody’s taking it. Surely someone in the First Hundred has to think this is creepy, right? Given their other decisions, is it realistic that there would be consensus either on the bioethics of dramatically lengthening lifespan or on the politics of giving a small group of people the right to live for an almost infinite amount of time, giving them much more influence than others? Especially given how reluctant the treatment’s inventors are to let it loose on Earth, where it would inevitably be a disaster, the cause of class war and hemispheric conflict, and of course, where it would put much more pressure on Mars as a site of immigration. Obviously, the prospect of health, the sight of “the Acheron group, who, now that he looked at them, were wandering around their aerie working and eating and playing soccer and swimming and so on with little smiles of absorbed concentration, with a kind of humming,” is pretty appealing. But still! Big decisions made with very little discussion. It feels like a copout to have John be the person whose perspective we get this decision through, given how unthoughtful he can be about his own state of mind and motivations.
That said, it’s cool to see how the longevity treatment accelerates everything, from science: “Marina’s lab was getting ahead of the game. But so was everyone else. This seemed to be a result of the treatment, it made sense on the face of it. Longer experiments,” To political revolution and social engineering. As usual, it’s theorist Arkady who provides the definitive statement on how it’s all going to shake out:
If those aging treatments work, and we are living decades longer than previously, it will certainly cause a social revolution. Shortness of life was a primary force in the permanence of institutions, strange though it is to say it. But it is so much easier to hold onto whatever short-term survival scheme you have, rather than risking it all on a new plan that might not work—no matter how destructive your short-term plan might be for the following generations. Let them deal with it, you know. And really, to give them their due, by the time people learned the system they were old and dying, and for the next generation it was all there, massive and entrenched and having to be learned all over again. But look, if you learn it, and then stare at it for fifty more years, you will eventually be saying, Why not make this more rational? Why not make it closer to our heart’s desire?
And it’s the experience of going through the longevity cure, of subjecting himself to bioengineering, that gives John his central insight about how to create a genuinely new Martian political and cultural system: that it should be engineered out of a combination of existing traits. As he says in his literal speech on the mountaintop “it’s not like we have nothing and are being forced to conjure forms godlike out of the vacuum*—we have the genes you might say, the memes as Vlad says meaning our cultural genes, so that it’s in the nature of an act of genetic engineering what we do here, we have the DNA pieces of culture all made and broken and mixed by history, and we can choose and cut and clip together from what’s best in that gene pool.”
*I’d actually be really interested to hear what any economists, professional or armchair, have to say about the one idea conjured up out of the void that’s discussed here, Marina and Vlad’s proposal for an eco-economics. As one of those not-so-valuable artist types, the discussion made me nervous, but I feel a bit as if it’s over my head.
III.
Of course, part of what’s interesting in this section and in John’s wanderings is the sampler of cultural things that are more powerful on Mars, that seem uniquely suited to the planet. There’s John’s encounter with the Swiss who want to abolish the myth of punishment for bad children:“’That is what they tell you. That is Switzerland. And that is why I am here on Mars.’ ‘The Böögen carried you here?’ They laughed, the woman too. ‘Yes. I was always bad.’ She grew more serious. ‘But we will have no Böögen here.’” Then, there’s the way art looks in Martin geology, as when John catches Shakespeare on Martian television, “twenty minutes of some Russians staging Hamlet in pressure suits at the bottom of the Tyrrhena Patera mohole, a production that struck John as crazy until Hamlet caught sight of Claudius kneeling to pray, and the camera tilted up to show the mohole as cathedral walls, rising above Claudius to an infinitely distant shaft of sunlight, like the forgiveness he would never receive.”
And then, there’s how religion functions in space. Frank’s relationship with more conservative Muslims and John’s harmony with the Sufis is an obvious analogue for their different political styles. But each interpretation of Islam also works on Mars in its own way. For Frank’s friends, the nomadic life of Martian miners lets them preserve a closed society. For John’s, spinning is easier on Mars, and the planet’s name fits into their holy litany, while the journey itself is a fulfillment of a holy obligation:
They were Qadarite Sufis, they told him, pantheists influenced by early Greek philosophy and modern existentialism, trying by modern science and the ru’ yat al-qalb, the vision of the heart, to become one with that ultimate reality which was God. “There are four mystical journeys,” Dhu said to him. “The first begins with gnosis and ends with fana, or passing away from all phenomenal things. The second begins when fana is succeeded by baqa, or abiding. At this point you journey in the real, by the real, to the real, and you yourself are a reality, a haqq. And after that you move on to the center of the spirit universe, and become one with all others who have done likewise.” “I guess I haven’t begun the first journey yet,” John said. “I don’t know anything.” They were pleased by this response, he could see. You can start, they told him, and poured him more coffee.
It’s an interesting contrast to Hiroko’s aereophany—Sufism was created on Earth but seems to fit on Mars, where Hiroko’s new worship was invented on Mars and for life there:
A ceremony they had created together under Hiroko’s guidance and inspiration. It was a kind of landscape religion, a consciousness of Mars as a physical space suffused with kami, which was the spiritual energy or power that rested in the land itself. Kami was manifested most obviously in certain extraordinary objects in the landscape—stone pillars, isolated ejecta, sheer cliffs, oddly smoothed crater interiors, the broad circular peaks of the great volcanoes. These intensified expressions of Mars’s kami had a Terran analogue within the colonists themselves, the power that Hiroko called viriditas, that greening fructiparous power within, which knows that the wild world itself is holy. Kami, viriditas; it was the combination of these sacred powers that would allow humans to exist here in a meaningful way.
We’re still at a point in Martian society where those alternatives, a genetically engineered hybrid drawn from Terran principals, and uniquely Martian creations, are in competition and it’s not clear what’s going to win.
